I recently bought a new construction house in Fort Myers That will be ready in Feb. However, my loan was contigent on my house in Colorado selling. My house did not sell and I got rejected for the new loan. Can I recuporate any of my down payment back?

Last April,my family and I went down to Florida to look at houses for sale,and we decided to buy a new construction home in Fort Myers. Upon purchasing the new house,I had to put down roughly $49,000, which included a $10 deposit, a $5,000 retaining deposit, and the first options payment. There is no contingency on the RTB house for selling our current home. However, after interviewing and consulting with several realtors,prior to going to Florida, we where told that in Denver’s current hot market at the time, that our house would sell quickly. After 2 agents,and 6 months on the market, our house has not sold. My loan for the new house is contingent on me selling my current home. I tried to pull out of buying the house in August before they even started construction however, the seller was very rude and hostel towards me, and told me that I could not pull out of the house at that time. I was also told, that I had not had my house on the market long enough, and that I needed to lower my asking price. We were on a time crunch to move to Florida,as my son in law had a job offer. However, since our current house did not sell in time,the company that his job offer was from,decided to go with another person. Also my grand daughters do not want to start school too late after second semester starts, nor do they want to start school out there next year,as my older grand daughter is going to be a senior in high school. Therefor I want to take the house off of the market now, as the market has tremendously slowed down.It is my understanding that I may lose part of the amount put down and I would like to know, if I could lose all of the amount put down, and or be held accountable for the new mortgage on the house, since I only had a pre-qulification letter but not an actual loan? What are the next steps that I need to take to find this out, and if I need representation.

Asked on December 3, 2018 under Real Estate Law, Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

If there was a contingency in the contract stating that you could withdraw from the sale and get your money back if you did not receive financing within a certain period of time, and you are acting within that period of time, then you could pull out and get your down payment back. Otherwise, you are locked into the transaction and will at a minimum lose your full downpayment--you could also potentially be liable for other costs which the other party incurs due to you breaching (violating) the contract and going through with the transaction.

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